A complaint for judicial misconduct was filed against Judge George C. Paine, II, Chief Judge of the United States Bankruptcy Court for the Middle District of Tennessee, alleging that Judge Paine’s membership in Belle Meade Country Club violated Canons 2A and 2C of the Code of Conduct for United States Judges and constituted misconduct under the Act. On April 8, 2011, the Sixth Circuit Judicial Council issued a divided decision, dismissing the complaint, and citing Judge Paine’s efforts to change Belle Meade’s discriminatory practices. The majority determined that “Judge Paine’s long and sincere efforts to integrate the club in question . . . preclude a finding that he has engaged in misconduct.”
On review, in In re: Complaint of Judicial Misconduct, C.C.D. No. 11-01 (Nov. 17, 2011) (pdf), the Judicial Conduct and Disability Committee reversed and determined that Judge Paine’s membership in Belle Meade constituted misconduct. In doing so, the Committee noted that “members of the judiciary are required to accept unique and heightened restrictions on their personal lives that would not pertain to ordinary citizens.” According to the text of Canon 2C, judges are forbidden from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” Significantly, the Committee found that judges are also prohibited from holding membership in organizations “that would reasonably appear to the public to discriminate in their membership practices on any of the grounds listed in Canon 2C.”
In reviewing the evidence in the record, the Committee found that Belle Meade invidiously discriminated against women and African Americans in its membership practices. Despite being located in Nashville, Tennessee, one of the most cosmopolitan cities in the Southern United States, with a 27% African American population and a female population of over 50%, the Club boasted no female or African American Resident Members. In addition, despite Judge Paine’s personal efforts to integrate the Club, there was “considerable evidence of intentional discrimination with respect to African Americans” by Belle Meade. While the Committee found Judge Paine’s efforts admirable, the Committee determined that “[t]he ultimate question we face is not whether Judge Paine personally practices or participates in invidious discrimination or whether he tried to change those practices at Belle Meade.” Rather, the proper inquiry is whether a judge’s membership in an organization that invidiously discriminates creates an appearance of impropriety, which “is a bright-line rule without a subjective component.”
Going forward, the Committee’s decision offers significant guidance to judges on complying with Canon 2C. Judge’s considering membership in an organization “should take steps to ensure that such membership would not appear improper.” In all cases, this requires surveying the group or organization’s membership, constitution, and by-laws. Further, if “reasonable persons with knowledge of all relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination, but the membership nevertheless is not diverse, the judge should err on the side of caution and decline membership.” Finally, in light of the Committee’s decision, it is clear that a judge should withdraw an existing membership from an organization that practices invidious discrimination and that a protracted personal campaign to change such an organizations discriminatory practices, is insufficient to comply with a judge’s obligations under the Code of Conduct.
Because of Judge Paine’s forthcoming retirement and in light of his dedication of his life to public service, the Committee determined that no disciplinary action would be taken. The Committee noted that its decision was “not intended to impugn Judge Paine’s good faith, of which there is much evidence” and emphasized that Judge Paine “is retiring from the judiciary with his reputation for devoted service to his country intact.”
